[1] The case holding that three students' uniforms representing 50% or more of the national market share constitute a collaborative act that interferes with business activities under Article 19 (1) 8 of the former Monopoly Regulation and Fair Trade Act by organizing a council jointly with the Government and schools, prohibiting and restricting agents from jointly purchasing goods and promotional products, prohibiting and restricting agents from providing goods and promotional products, and allowing agents to decide whether to place a department store store and fee rate and inspecting the agreement constitutes a collaborative act that interferes with business activities

[2] The standard for determining whether the pertinent market and the pertinent collaborative act are subject to the determination of the unfair collaborative act under the former Monopoly Regulation and Fair Trade Act

[1] Article 19 (1) 8 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) / [2] Article 19 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004)

[2] Supreme Court Decision 99Du6514, 6521 decided Mar. 15, 2002 (Gong2002Sang, 903)

Japanese Exemplary Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the defendant-appellant)

Fair Trade Commission (Attorney Lee Im-hwan, Counsel for defendant-appellant)

Seoul High Court Decision 2001Nu16998 delivered on September 2, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the adopted evidence. Then, it determined that the Plaintiff and the 3-party agents of the Plaintiff et al. agreed on the fact that the Plaintiff and the 1-party 2-party 1 company (hereinafter “SS Global”)’s brand products and the 3-party 1 company (hereinafter “three-party 1 company”) were transferred to a general small and medium enterprise products, and that the three-party 1 company’s nationwide market share continuously increased due to the recent trend of students’ brand product preference, etc., 50% or above based on the sales volume and consumer price in 200, 3-party 1 company’s business team leader of the Plaintiff et al. and 20 representative of the three-party 1 company and the three-party agents of the three-party 1 company’s total sales price and 60-party 1 company’s total sales price at the 3-party representatives’ meeting or 3-party agents’ meeting were held to be held within the extent of their total sales price and 1-party 10.

In light of the relevant laws and records, the above fact-finding and judgment of the court below are just and acceptable, and there are no errors in the misapprehension of legal principles as to the elements of an unfair collaborative act, such as incomplete deliberation, misconception of facts against the rules of evidence, and misapprehension of legal principles

2. As to the grounds of appeal Nos. 2 and 3

(a) Whether it interferes with joint purchase activities;

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that three student uniforms including the plaintiff et al. jointly respond to the joint purchase activities of student uniforms promoted by the parents and agreed to prevent the spread of the above joint purchase activities through several meetings and to interfere with the participation of other student uniforms manufacturers and distributors in bidding, etc. Furthermore, local council and agents may exercise the ability to participate in demonstration, etc. with other general enterprises to prevent bid avoidance and joint purchase, etc., or even if they are allowed to participate in bidding under prior agreement in order to stop and delay bidding, and thereby, the Ministry of Education and the Small and Medium Business Administration and the Small and Medium Business Administration, with the lead of Sch Global, instructed or supported the above activities through contact with the Government and the school, etc., and decided that the above acts by three student uniforms including the plaintiff et al. constitute a collaborative act to actively obstruct the policy decision-making process of the government and the school, which goes beyond the legitimate level of opposition or alternative, and thus, it does not substantially interfere with the student uniforms's business activities or the free competition of the third party.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as incomplete deliberation or misconception of facts due to violation of the rules of evidence, misunderstanding of facts against the rules of evidence, or misunderstanding of legal principles as to competition restriction

B. Whether business activities are interfered with by prohibiting the provision of stolen goods and promotional items

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its holding, and determined that it constitutes a collaborative act interfering with business activities under Article 19(1)8 of the Act, on the ground that the student uniform agents’ offering of goods and promotional products jointly by three students, including the Plaintiff, is practically restricted or obstructed by restricting business activities such as whether or not they should make a decision by themselves based on their management conditions, sales strategies, etc., and by restricting business activities such as decision-making on the scope thereof.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as incomplete deliberation or misconception of facts due to violation of the rules of evidence, misunderstanding of facts against the rules of evidence, or misunderstanding of legal principles as to competition restriction

C. Whether business activities are interfered with by determining fees rates and salesroom occupants

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and found that three students, including the Plaintiff, agreed to jointly determine whether to sell the student uniforms of three students through a regional council and the fee rate, and inspected the progress thereof, etc., the lower court determined that the agent’s act constitutes a collaborative act interfering with business activities under Article 19(1)8 of the Act, on the grounds that it substantially limits or interferes with free and fair competition by participating in the business decision-making and business contents based on his own judgment beyond the scope of supporting the salesroom occupants.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as incomplete deliberation or misconception of facts due to violation of the rules of evidence, misunderstanding of facts against the rules of evidence, or misunderstanding of legal principles as to competition restriction

3. As to the fourth ground for appeal

The relevant market, which is defined as the premise of the determination of an unfair collaborative act under the Act, shall be determined by comprehensively taking into account the function and use of the goods subject to the transaction, awareness of buyers, and the type of management decision-making related thereto, etc. Specifically, whether the collaborative act in question is "competitive" should be determined by examining whether the collaborative act in question affects or is likely to affect the determination of price, quantity, quality, and other terms and conditions of transaction by reducing competition in a particular business area due to the collaborative act in question, taking into account various circumstances such as characteristics of the goods in question, consumer selection standards, and impact of the act in question on the market and enterprisers (see Supreme Court Decision 9Du6514, Mar. 15, 2002).

According to the records, although the student uniforms are goods with the same function and use nationwide, they are different depending on the school, they may be changed depending on the case, which can be easily supplied to students' uniforms among different kinds of Lone Stars, and each of its total sales and agencies such as the plaintiff, etc. has a business policy similar to nationwidely in accordance with the direction or recommendation of three students' uniforms, in full view of the above circumstances and the contents of the collaborative act of three students' uniforms such as the plaintiff, etc., the collaborative act of this case may cause or threaten to cause impacts on the determination of the student uniforms price, etc. by reducing competition in the nationwide double uniform sales market, which is the related market.

The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the determination of a certain business area or restriction on competition as otherwise alleged in the ground of

4. As to the fifth ground for appeal

After comprehensively taking account of the adopted evidence, the lower court determined that, even if the penalty surcharge imposed on the Plaintiff is more than the ordinary interests during the period of the violation, such circumstance alone does not lead to excessive penalty surcharge, even if the penalty surcharge imposed on the Plaintiff is more than the ordinary interests during the violation period.

In light of the records, the judgment of the court below is just and acceptable, and there is no violation of the law of misunderstanding of facts or misunderstanding of legal principles as to deviation and abuse of discretionary power due to violation of the rules

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)